German Supreme Court (BGH) decided in respect to a strawman in trademark cases.

The BGH has decided on a trademark registration in Germany by an agent without the consent of a foreign trademark owner that the registration of the mark by a strawman of the agent is the same as the registration of the mark by the agent himself.

The guiding principles of this decision are:

1. For the assertion of claims under §§ 11, 17 MarkenG it is sufficient that the principal at the time, when an agent made a trademark application was the holder of a (foreign) application, which led to the registration at the latest at the time the claim was made.
2. The registration of the trademark by a strawman of the agent is the same as the registration of the trademark by the agent.
3. If an agent trademark is transferred to a third party, the principal can also enforce the claims under §§ 11, 17 MarkenG asserted the third party.
4. Agent or Representative in the sense of §§ 11, 17 MarkenG can not only be the sales representative. The decisive factor is that it is a sales intermediary who has a duty towards his contractual partner, to exercise its interests. This is missing both in pure goods exchange contracts and in the relationship between co-shareholders.
5. An agent relationship in respect to §§ 11, 17 MarkenG is to be assumed if there is an agreement between the proprietor of the foreign trade mark and the intermediary, according to which the marketing intermediary is to work for the other as a sales partner, in addition to the mere conclusion of pure exchange contracts.